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Goldstein v. Aria Resort & Casino

United States District Court, D. Nevada

February 21, 2017




         Order This matter is before the court on Plaintiff Seymour “Sy” Goldstein's Amended Complaint (ECF No. 5). The Amended Complaint is referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(A) and LR IB 1-3 of the Local Rules of Practice.


         Mr. Goldstein is proceeding in this action pro se. He initially filed an Application to Proceed In Forma Pauperis (ECF No. 1), but later remitted a check to the Clerk of the Court to initiate this action. See Receipt of Payment (ECF No. 2). Thus, the application was denied as moot. See Order (ECF No. 3). Upon initial review of the complaint, the court instructed Mr. Goldstein to file an amended complaint to correct defects in his pleading.

         This case arises from Mr. Goldstein's allegations of negligence against Defendant Aria Resort & Casino (the “Aria”). In the initial screening order, the court found that the original complaint failed to state a claim under Rule 8(a)(2) of the Federal Rules of Civil Procedure[1]because it was devoid of factual allegations. See Order (ECF No. 3). The only description of Mr. Goldstein's claim was found on the court's civil cover sheet form, which stated that this is a “tort action for slip or skip [and] fall.” This statement suggested that Goldstein is attempting to pursue a negligence claim. Goldstein was informed that to state a negligence claim in Nevada, a plaintiff must allege that: (1) defendant owed plaintiff an existing duty of care; (2) defendant breached that duty; (3) defendant's breach was the legal cause of the plaintiff's injuries; and (4) plaintiff suffered damages. Turner v. Mandalay Sports Entm't, LLC, 124 Nev. 213, 217, 180 P.3d 1172, 1175 (2008). Mr. Goldstein's complaint lacked sufficient factual allegations to state a colorable claim as it appeared to be a form document that he did not complete. Thus, the court informed him that the complaint failed to state a claim and dismissed his complaint with leave to amend. Goldstein was also informed that the court cannot refer to a prior pleading in order to make an amended complaint complete.

         Mr. Goldstein timely filed an Amended Complaint (ECF No. 5) which the court, unfortunately, only recently discovered needed screening.

         I. Screening the Amended Complaint

         When a litigant's requests permission to proceed in forma pauperis, a federal court must screen the complaint and any amended complaints filed prior to a responsive pleading pursuant to § 1915(e). Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc). Federal courts are required to dismiss an action if the complaint fails to state a claim upon which relief may be granted, is legally “frivolous or malicious, ” or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). If the complaint states a colorable claim for relief, the court will direct the Clerk of the Court to issue summons to the defendant(s) and the plaintiff must then serve the summons and complaint within 90 days. See Fed. R. Civ. P. 4(m). When a court dismisses a complaint pursuant to § 1915(e), a plaintiff is ordinarily given leave to amend with directions as to curing its deficiencies, unless it is clear from the face of the complaint that the deficiencies could not be cured by amendment. Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).

         Allegations in a pro se complaint are held to less stringent standards than formal pleading drafted by lawyers. Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, pro se litigants “should not be treated more favorably than parties with attorneys of record, ” Jacobsen v. Filler, 790 F.2d 1362, 1364 (9th Cir. 1986); rather, they must follow the same rules of procedure that govern other litigants. Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995).

         A. Plaintiff's Factual Allegations and Claims for Relief

         The “First Amended Complaint” consists of one paragraph and is identified as “Attachment A” to a sample form complaint. Mr. Goldstein alleges that he was a guest at the Aria on March 23-24, 2013. As he walked toward the sports book, he slipped and fell on a foreign matter on a hardscape walkway. The fall caused him to “split” his left elbow and forehead and break his nose and right wrist. Mr. Goldstein does not allege an amount of damages For the reasons discussed below, the court finds that the complaint fails to state a proper basis for federal jurisdiction.

         B. Diversity Jurisdiction

         Federal courts are courts of limited jurisdiction. Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552 (2005). “A federal district court is obligated to ensure it has jurisdiction over an action, and once it determines it lacks jurisdiction, it has no further power to act.” Guerra v. Hertz Corp., 504 F.Supp.2d 1014, 1017-18 (D. Nev. 2007) (citing Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94, (1998) (“Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.”). Federal courts are “presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears.” Stock West, Inc. v. Confederated Tribes of the Colville Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989); see also Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).

         A court's jurisdiction to resolve a case on its merits requires a showing that the plaintiff has both subject matter and personal jurisdiction. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 577 (1999). Personal jurisdiction gives a court jurisdiction over the person or entity against whom the case is brought. Subject matter jurisdiction gives a court jurisdiction over the type of case that a plaintiff brings. There are two kinds of subject matter jurisdiction: (a) federal question, giving the district court original jurisdiction over all “all civil actions arising under the Constitution, laws, or treaties of the United States, ” 28 U.S.C. § 1331; and (a) diversity of citizenship, giving the district court original jurisdiction over all civil actions between citizens of different states where the matter in controversy exceeds ...

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